Justia Communications Law Opinion Summaries

Adopted in 2019, Ohio Revised Code 1349.05(B) states: No health care practitioner, with the intent to obtain professional employment for the health care practitioner, shall directly contact in person, by telephone, or by electronic means any party to a motor vehicle accident, any victim of a crime, or any witness to a motor vehicle accident or crime until thirty days after the date of the motor vehicle accident or crime. Any communication to obtain professional employment shall be sent via the United States postal service. Subsection (C) provides the same restrictions but with regard to the agents of health care practitioners. The plaintiffs provide chiropractic services; one plaintiff is a referral service that identifies and contacts prospective patients for health care providers. The plaintiffs claim that they “all rely upon advertising and marketing techniques that permit prompt contact with victims of motor vehicle and pedestrian accidents.” They alleged that the statute violates their constitutional rights to free speech and equal protection. The Sixth Circuit affirmed the district court in denying relief. The plaintiffs failed to show a substantial likelihood of succeeding on the merits of their free speech and equal protection claims; “strong” precedents foreclosed the plaintiffs’ challenges. View "First Choice Chiropractic, LLC v. DeWine" on Justia Law

Speech First challenged University of Illinois policies that allegedly impermissibly chill the speech of its student members. The Bias Assessment and Response Team (BART) responds to reports of bias-motivated incidents. Most students contacted by BART either do not respond or decline to meet; they suffer no consequences. If a student agrees to meet, BART staff explains that the student's conduct drew attention and gives the student an opportunity to reflect upon her behavior. BART’s reports are not referred to the University Police. The University Housing Bias Incident Protocol addresses bias-motivated incidents committed within University housing. There are no sanctions or discipline associated with a reported incident. When a student breaches his housing contract or violates University policy, there is a separate disciplinary process. Expression of the views described in the complaint would not contravene housing contracts nor violate any University policies. Individuals subject to student discipline may be subject to “No Contact Directives” (NCDs) and prohibited from communication with identified parties. NCDs do not constitute disciplinary findings and are not part of the students’ official disciplinary records. An NCD does not prohibit the student from talking or writing about the other. The University has not investigated or punished any members of Speech First under any of the challenged policies.The Seventh Circuit affirmed the denial of a preliminary injunction. Speech First failed to demonstrate that its members face a credible fear that they will face discipline on the basis of their speech as a result of the policies. View "Speech First, Inc. v. Killeen" on Justia Law

Federal prison officials seized one of Callahan’s paintings and some mail-order photos on the ground that they violated the prison’s rules against possessing sexually explicit materials. After filing internal grievances without success, Callahan sued for money damages and other relief under the First Amendment’s right to freedom of speech. The district court declined to create an implied cause of action, often called a Bivens claim, under the First Amendment for Callahan’s claim.The Third Circuit affirmed, noting that the Supreme Court has not recognized a new Bivens action in 40 years and has repeatedly declined to do so. The Court has rejected the Bivens inclination that a private right of action exists when Congress is silent and has adopted the opposite approach in statutory and constitutional cases. The Court has even cut back on the three constitutional claims once covered and has never recognized a Bivens action for any First Amendment right. The court noted that Callahan is in prison based on serious child pornography convictions. His lawsuit challenges the prison’s determination that his painting project and pictures were sexually explicit enough to increase the risks of harassment of female personnel and disorder among prisoners. View "Callahan v. Federal Bureau of Prisons" on Justia Law

The Telephone Consumer Protection Act of 1991 prohibits almost all robocalls to cell phones, 47 U.S.C. 227(b)(1)(A)(iii). A 2015 amendment created an exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States, 129 Stat. 588. The Fourth Circuit concluded that the government-debt exception was a content-based speech restriction that could not withstand strict scrutiny and was severable from the robocall restriction.The Supreme Court affirmed. Under the Free Speech Clause, the government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Content-based laws are subject to strict scrutiny. The government-debt exception is content-based because it favors speech made for the purpose of collecting government debt over political and other speech. The exception does not draw distinctions based on speakers, and even if it did, that would not automatically render the distinction content-neutral. The exception focuses on whether the caller is speaking about a particular topic and not simply on whether the caller is engaged in a particular economic activity. While the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech, this law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The government has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, issue advocacy, and the like. View "Barr v. American Association of Political Consultants, Inc." on Justia Law

Following an incident at President Trump's 2019 Social Media Summit involving Appellee Brian Karem, a journalist with a hard pass, and Sebastian Gorka, a Summit attendee, the Press Secretary suspended Karem's pass for thirty days on the ground that his conduct violated "professional journalistic norms."The DC Circuit affirmed the district court's grant of a preliminary injunction enjoining the enforcement of the suspension of Karem's hard pass credentials based on Fifth Amendment due process grounds. The court held that Karem is likely to succeed on his due process claim because, on this record, he lacked fair notice that the White House might punish his purportedly unprofessional conduct by suspending his hard pass for a month. The court also held that the remaining preliminary injunction factors counsel in favor of affirmance where Karem stands to suffer immediate irreparable harm absent an injunction, and the balance of the equities and the public interest factors also favor an injunction. The court limited the scope of the injunction to run only to the Press Secretary, rather than the Press Secretary and the President. View "Karem v. Trump" on Justia Law

In 2016, the Seventh Circuit held that Chicago is entitled to limit sales on the streets adjacent to Wrigley Field, home of the Chicago Cubs, but remanded a magazine seller’s contention that an ordinance requiring all peddlers to be licensed was invalid because of an exception for newspapers. Before the judge acted on remand, Chicago amended its ordinance to provide: It shall be unlawful for any person to engage in the business of a peddler without first having obtained a street peddler license under this chapter. Provided, however, a street peddler license is not required for selling, … only newspapers, periodicals, pamphlets, or other similar written materials on the public way. There is no distinction between newspapers and magazines. Left Field Media withdrew its request for an injunction but sought damages to compensate for injury before the amendment.The Seventh Circuit affirmed the dismissal of the suit for want of a justiciable controversy. Left Field did not show any injury. It did not assert other costs, such as overtime wages or legal fees incurred to attempt to get a license. Because Left Field has not offered details, it would not be possible to conclude that it suffered even a dollar in marginal costs. View "Left Field Media LLC v. City of Chicago" on Justia Law

The Pennsylvania Attorney General (OAG) charged Walker with forgery and computer crimes. The prosecutor and the lead investigator requested that Penn State produce Walker’s emails from her employee account. At Penn’s request, they obtained a subpoena. The subpoena was missing information regarding the date, time or place where the testimony or evidence would be produced, or which party was requesting the evidence. The subpoena was incomplete and unenforceable. The prosecutor offered the subpoena to Penn’s Assistant General Counsel, who instructed an employee to assist. After the OAG obtained Walker’s emails, the pending criminal charges were dismissed with prejudice. Walker filed suit under 42 U.S.C. 1983. The district court dismissed, citing qualified immunity because Walker did not have a clearly established right to privacy in her work emails. A Third Circuit panel affirmed, reasoning that Penn produced the emails voluntarily, rather than under coercion resulting from the invalid subpoena and was acting within its legal authority and through counsel.The Third Circuit affirmed the dismissal of Walker's amended complaint, alleging violations of the Stored Communications Act, 18 U.S.C. 2701 (SCA). The SCA is inapplicable because Penn does not provide electronic communication services to the public. Penn acted within its rights as Walker’s employer in voluntarily disclosing her work emails. Penn’s search of its server to produce Walker’s emails is not prohibited by the SCA, regardless of whether its counsel was induced by deceit or knowingly cooperative. It is the law of the case that Penn consented to disclose Walker’s emails. View "Walker v. Coffey" on Justia Law

During the 2016 presidential campaign, C.M., not yet 12 years old, publicly endorsed Donald Trump and released videos seen by thousands. A video in which C.M. called Hillary Clinton “deplorable” attracted more than 325,000 views on Facebook alone. C.M. stated: The people I talk about in these posts really have it coming. In 2018, Newsweek published an article, “Trump’s Mini-Mes,” that featured a photo of C.M. holding up a Trump campaign sign; it referred to Trump supporters recruiting children as spokespeople and to children “being weaponized” to defend “raw racism and sexual abuse.”The Third Circuit affirmed the dismissal of C.M.'s false light and defamation suit. The article contained derogatory opinions based only on disclosed facts, which are not enough to show defamation or false light. Every contested statement is an opinion, label, or speculation based on disclosed facts and alleges no specific wrongdoing; derogatory characterizations without more are not defamatory. C.M. is a limited-purpose public figure. He voluntarily injected himself into the political controversies and enjoys significantly greater access to the channels of effective communication than his peers. C.M. did not plead facts showing actual malice, which the First Amendment requires of those who step into the political spotlight. View "McCafferty v. Newsweek Media Group Ltd" on Justia Law

An Illinois municipality may join the Municipal League, an unincorporated, nonprofit, nonpolitical association, and may pay annual membership dues and fees; member municipalities may act through the League to provide and disseminate information and research services and do other acts for improving local government, 65 ILCS 5/1-8-1. Lincolnshire is one of more than a thousand dues-paying League members and uses tax revenue to pay the dues from the Village’s General Fund. From 2013-2018, Lincolnshire paid at least $5,051 in voluntary dues and fees to the League. Individual residents and the Unions sued, claiming First Amendment and the Equal Protection Clause violations. They claimed that Lincolnshire compelled them to subsidize private speech on matters of substantial public concern because the League sent emails promoting a particular political agenda, including the adoption of “right to work” zones.The Seventh Circuit affirmed the dismissal of the suit. Lincolnshire itself has the right to speak for itself and a right to associate; it voluntarily joined the League as it is authorized to do. Local governments must be allowed to discuss, either directly or through a surrogate, ideas related to municipal government, regardless of where those ideas originated. View "O'Brien v. Village of Lincolnshire" on Justia Law

Audrie, the Potts’ daughter, was sexually assaulted while unconscious from intoxication. Her assailants distributed intimate photographs of her. Audrie committed suicide. The Potts, as the registered successors-in-interest to “deceased personality” rights for Audrie under Civil Code 3344.1, authorized the use of Audrie’s name and likeness in a documentary. The Potts sued Lazarin under section 3344.1, claiming that Lazarin (who claims to be Audrie’s biological father) had used Audrie’s name and likeness "for the purpose of advertising services” without their consent. Lazarin admitted that he had displayed Audrie’s photograph “to change the law regarding parental rights” but argued that he had not acted to promote “goods or services.” The Potts submitted evidence that Lazarin solicited donations for a suicide prevention group, using Audrie’s name and photograph. Lazarin brought an unsuccessful special motion to strike the complaint under Code of Civil Procedure 425.16.The court of appeal reversed. Lazarin made a prima facie showing that the Potts’ suit was based on his “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” The Potts failed to establish that there was a “probability” that they would “prevail” on their Civil Code section 3344.1 suit; they did not show that Lazarin “misappropriate[ed] the economic value generated by [Audrie’s] fame through the merchandising” of her name or likeness. View "Pott v. Lazarin" on Justia Law